WaPo Explains How Laurence Tribe Flipped the Biden Administration on the Eviction Moratorium

"Remus got behind the new strategy after consulting with Tribe and proved instrumental in the effort, working late Monday night to push the measure through."

Earlier today, I wrote about the Laurence Tribe's role in flipping the Biden Administration on the eviction moratorium. The Washington Post published a deep dive into the flip. It turns out that Nancy Pelosi recommended that President Biden seek advice from Tribe. Ron Klain, White House Chief of Staff, called Tribe on Sunday. And somehow Tribe changed everyone's mind.

Let's walk through the chronology.

First, on Thursday, July 29, the White House announced it could not extend the moratorium:

Last Thursday, two days before the moratorium expired, White House press secretary Jen Psaki called on Congress to pass a law authorizing the moratorium — an impossibility for the divided legislature on such short notice.

Earlier, Biden wanted to extend the policy, but the White House counsel said no.

Before the reversal, Biden had been open to extending the ban but accepted the advice of the White House counsel that he had no legal means to do so, the person said. . . .

Senior White House officials Gene Sperling, Brian Deese and Susan Rice had the week before raised internally whether the moratorium could be extended, only to be rebuffed by the White House counsel.

Second, after the announcement, Speaker Pelosi told Biden to seek Tribe's opinion. According to PunchBowl, "Pelosi provided Biden with several names." We don't know who these other scholars are. But Tribe was apparently at the top of the list.

After the administration announced last week that it could not find a legal justification for extending the ban, House Speaker Nancy Pelosi (D-Calif.) recommended to the White House that Biden seek out Tribe's counsel, according to one person familiar with the matter. PunchBowl News first reported that Pelosi told the White House to seek the advice of Tribe and other lawyers.

Third, Biden told his Chief of Staff, Ron Klain to call Tribe. That call took place Sunday evening:

After White House legal advisers found he could not extend a national eviction moratorium, President Biden told Chief of Staff Ron Klain to seek the advice of Harvard law professor emeritus Laurence Tribe about whether an alternative legal basis could be devised for protecting struggling renters across the country, according to a person familiar with the matter….Tribe suggested to Klain and White House Counsel Dana Remus that the administration could impose a new and different moratorium, rather than try to extend the original ban in potential defiance of a warning from Supreme Court Justice Brett M. Kavanaugh, the person said.

Tribe already explained his argument to Politico this morning:

While the earlier eviction ban applied nationwide — something Kavanaugh pointedly noted in his brief opinion in June — the new one applies only in areas of substantial or widespread Covid-19 transmission. "The initial moratorium was nationwide and not targeted in health-specific terms that are of a sort that fit the mandate of the CDC," Tribe said.

Adam Winkler repeated this argument in the New York Times. Color me crazy, but I don't think reducing 100% coverage to 90% coverage will change anyone's mind. This dilatory tactic will simply give the government more time to distribute money before some district court enjoins the policy.

Yet, fourth, this position somehow persuaded White House Counsel, Dana Remus.

But Remus got behind the new strategy after consulting with Tribe and proved instrumental in the effort, working late Monday night to push the measure through, the person said.

…

"As important as Larry was," the CDC went forward "because government lawyers got comfortable with this theory," said the person, who spoke on the condition of anonymity to reveal details of private conversations.

Tribe declined to acknowledge whether this conversation took place

In an interview, Tribe said he was not at liberty to confirm "any conversation I may or may not have had with the White House or [Biden's] staff" but added that he had spoken to Pelosi about the matter Tuesday afternoon. . . .  Tribe added: "It was an incredible whirlwind. It was extremely intense, and I feel very lucky to have been asked by anybody what I thought about this, because a lot of people would have been needlessly hurt."

Fifth, as late as Monday, White House official Gene Sperling said there still was no path forward:

On Monday afternoon, when Sperling told reporters the administration saw no legal path forward, the health-care agencies had not yet agreed to back the new moratorium, the person said. . . .

On Monday, Sperling told reporters there was no possible legal avenue for either extending the existing moratorium or enacting a new, more targeted eviction ban. "The president has not only kicked the tires, he has double-, triple-, quadruple-checked. He has asked the CDC to look at whether you could even do targeted eviction moratorium that just went to the counties that have higher rates, and they as well have been unable to find the legal authority for even new targeted eviction moratoriums," Sperling said.

Sperling added at that news conference: "I don't think this means this president is going to give up. I think he's going to keep looking and pushing. . . . We are still investigating what that legal authority is, whether there is any options that we can have on eviction moratoriums beyond what we've seen."

Sixth, by Tuesday, the administration adopted the new policy.

By Tuesday, government lawyers in the White House, Department of Health and Human Services, and Centers for Disease Control and Prevention produced a 19-page document to protect the overwhelming majority of renters from eviction until Oct. 3. It was released that afternoon in a remarkable reversal by the White House, which a day earlier had said it did not think it had the authority to extend the ban.

I find it unlikely that the 19-page document was written from scratch overnight. Government doesn't move that quickly. I suspect this policy was written in advance, but the White House counsel rejected it. However, once Tribe gave that recommendation his blessing, CDC dusted off the document and put it forward.

This move may have short-term benefits for Biden. He can take credit for halting evictions. And, if the Supreme Court rule against him, liberals can attack the Roberts Court. But this move was very risky from a long-term perspective. If the Court rules against the President, a majority will have to narrow the scope of 42 U.S.C. § 264. And that narrowing construction will constraint this administration and others in health crises unimaginable. Plus a declaration by the Supreme Court that the policy is unlawful paves the way for a massive takings suit. What a risky gambit.

Comments

[David Welker]

Unlike Blackman, I think the shift in legal argument here is very significant. It isn't about whether the number is 100% or 90% or 50% or 10%. It is that there is objective rule-of-law like criteria, informed by the expertise of the CDC, that determines whether the moratorium applies or not instead of a blanket decision based on an unreviewable and non-justiciable act of discretion.

For Blackman to characterize the issue as 100% or 90% is to focus on the particular outcome, but this case has always been about procedure more than outcome. After all, no one has (yet) argued that the federal government does not have the power to impose an eviction moratorium at all. Instead, the argument is that if there is to be such a moratorium, it has to be authorized by Congress. The nature of that argument is not about whether a moratorium covers 100% or 90% or 50% or 10% of the country. Instead, it is about whether there has been a proper delegation of authority and proper procedure by the CDC pursuant to that delegation.

That the CDC has used its expertise to formulate a justiciable rule significantly eases the rule-of-law concerns that were motivating objections to the original moratorium. The CDC has formulated criteria and judges (and other decision-makers) can objectively decide whether that criteria applies to a particular situation or not.

Tribe's argument is powerful.

[Liberator Lickpenny]

I agree with pretty much everything you wrote. I am guessing that Blackman is implicitly concluding that the delegation was improper.

I think Blackman is right at the end: this is a gambit. They’re clearly willing to risk a possible narrowing construction in exchange for a short term benefit.

[Rev. Arthur L. Kirkland]

Speaking of gambits: What will precipitate the change in focus from "narrowing construction" to 'enlarging the Supreme Court?'

The pandemic (including eviction) issue remains low on my tote board, behind voter suppression, abortion, gun safety, spending (budget), civil rights (gays, Blacks, immigrants), and perhaps a few others. The virus/vaccination issue could become a stronger contender during the next few months, though.

[DaivdBehar]

Tribe's legal analyses always end up agreeing with Democrat platform talking points. That is statistically significant.

[WuzYoungOnceToo]

Tribe’s argument is powerful.

Well, it certainly has a powerful odor about it, I'll grant you that.

[Liberator Lickpenny]

Re: procedure

Did they do a notice and comment period for this new one? Or is this still folded into the older one? It does seem likely that APA will factor into this.

[bevis the lumberjack]

“Tribe’s argument is powerful”

In a fairly long post, you did not go near describing the “powerful” argument that allows the federal government to indefinitely take the property of private citizens without compensation. Much less defy the SC to do so.

I’ll bet you’re a huge fan of the abomination that is civil asset forfeiture.

[DaivdBehar]

I'm sorry David, did you say,i formed by expertise at the CDC. I could not find the studies on reduced transmission of viruses from a moratorium. The latter is to support the lockdown, to enrich the tech oligarchs. Indeed, indoor air is risky. You get the virus breathing the air of others. The tighter the lockdown, the higher the death toll. Having your shit and yourself thrown outside reduces risk.

[DaivdBehar]

The CDC should be considered as a Democrat attack dog. Its frequently shifting messages are best explained by the political interests of the Democrat Party, at that time.
The tech oligarchs own yhemedia and the Democrat Party. Their enrichment path is in the market of China. They kowtow. Tbe Democrat Party must be viewed as a servant of the Chinese Commie Party.

[Brett Bellmore]

There are actually two important issues here:

1) How the rule was arrived at.

2) Whether the rule was something the agency was legally/constitutionally entitled to arrive at.

It should do an agency no good to follow the right procedure to arrive at an unconstitutional rule. Such as here, an uncompensated taking with no good statutory basis.

[dwb68]

poweful!!!

Except for, you know, the part where the CDC still does not have the authority.

[WuzYoungOnceToo]

Tribe’s argument is powerful.

Well, it certainly has a powerful odor about it, I'll grant you that.

[Tom for equal rights]

"That the CDC has used its expertise to formulate a justiciable rule significantly eases the rule-of-law concerns that were motivating objections to the original moratorium."

The reality is that the CDC used two deeply flawed studies to show that stopping evictions on a tiny subset of the US population would have dramatic reduction in the transmission of Covid.

[TwelveInchPianist]

It’s important to remember that Tribe’s last instance of intellectual honesty ended up in the Heller decision, so I guess he learned his lesson.

[Liberator Lickpenny]

“If the Court rules against the President, a majority will have to narrow the scope of 42 U.S.C. § 264. And that narrowing construction will constraint this administration and others in health crises unimaginable”

Let’s assume that happens. What sort of narrowing construction do you think is reasonable?

Anybody have one or two in mind? Lets hear them!

[Michael P]

Several people have suggested that ejusdem generis is an appropriate narrowing construction. Others have suggested that the Takings Clause is relevant. Have you not been playing any attention?

[Liberator Lickpenny]

What an odd question. I am aware of that suggestion.

I try to avoid asking rhetorical questions. By "anybody", I meant "you". Applying e generis, how narrow a construction would YOU propose? Do YOU have any ideas of your own? Or are you always content with settling on the first ideas proffered by others? None of these are rhetorical.

[Brett Bellmore]

Not at all sure why my efforts to respond don't post. But if you look at the supposed statutory basis, the list of items you'd be applying "ejusdem generis" to, claiming an eviction moratorium is consistent with the list is a case of apples, kumquats, and neutron stars.

[Liberator Lickpenny]

Sorry to hear, I have had issues with comments not posting slash double posting sometimes. Can’t figure out why. Maybe browser type? The mystery goes on hehe

I agree, if eviction moratorium is included then the list is basically limitless. I’m interested to see how this plays out.

[Michael P]

You are asking people to repeat arguments that (you acknowledge knowing) have already been made at length and with at least a fair bit of thought elsewhere. Why? Because you are hoping that they will not show up when you demand, allowing you to claim a forfeit? Because you are hoping that their on-demand repetition will contain some flaw that you can jump upon?

You should respond to those arguments, which you acknowledge knowing about, rather than expecting people to repeat them whenever you like.

[Liberator Lickpenny]

Friend, this is an informal comment board where we all use fake names. I assure you my question contained no ulterior motive. I am truly interested to hear if anyone has new, as-yet-unarticulated ideas. This might come as a shock to you, but some people really do like to hear what others have to say.

BTW, since you did not answer, I must assume for now that your answer is “No, I don’t have any original ideas of my own.” Reasonable assumption don’t you think? 😉

[Voize of Reazon]

Liberator, to be fair your question didn't specify that you only wanted to hear original ideas.

[Liberator Lickpenny]

Indeed, you are right. I had hoped that my friend would have given me the benefit of the doubt when I corrected the error. But alas, he did not.

[Michael P]

I am sorry to hear that you continue to demand people cater to your laziness and refusal to respond to points that have already been made elsewhere, even when you acknowledge that those points have already been made.

Your assumption is not only wrong, it is stupid. That seems to be you modus operandi, sadly.

[Liberator Lickpenny]

I thought the winky face made my sarcasm clear. I’m sure that you do have original ideas, so I apologize, as it is clear that I offended you.

Happy Friday!

[Stephen C]

If the renter is a soldier, and not paying rent.... wouldn't the eviction moratorium violate the 3rd amendment?

[Commenter_XY]

Ha, ha...quartering soldiers in time of peace. Very inventive. 🙂

[Krayt]

Iirc in one of the only two 3rd Amendment cases to make it to the Supreme Court, where police took over a home for a nearby crime situation, they ruled the police were not the military, so nope. Civilian general population much less so, presumably (even acknoledging stuff about drawing a militia from the whole population.)

[dwb68]

We take this for granted. However, in England its a thing:

https://abcnews.go.com/Blotter/olympic-security-missiles-roof-london/story?id=16254579

May 1, 2012 — -- Residents of an East London apartment complex have new, perhaps unwanted neighbors on their roofs: a dozen armed soldiers and surface-to-air missiles.

As part of the largest peacetime mobilization in British history, the military is installing the missile system in order to protect the Olympic stadium, which the apartment complex overlooks.

The most outspoken residents of Bow Quarter, however, all oppose the presence of the military and the missile system, saying the military failed to consult them and they worry that the missiles would make them even larger targets.

[Dr. Ed 2]

quartering soldiers in time of peace"

That is *exactly* what the British did -- remember that war was not declared until July 2, 1776...

[dirc]

I don't understand how an eviction moratorium isn't a 5th amendment violation, since it makes "inroads ... upon an owner’s use of it [property] to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.” (US v. Dickinson). Eviction moratoria have been in effect since April 2020 without any government compensation to landlords.

Does anyone have an explanation ?

[Darth Buckeye]

Silly owners. They think they own their property. They do not. They merely hold it in trust for the people.

[Ed Grinberg]

"You didn't build that!"

[Commenter_XY]

Dare I say this? I can foresee a nationwide injunction issued by a district court. Sigh.

[Michael P]

Normally, that would be a reasonable complaint, but in this case, the administration seems to have decided that it doesn't care what the Constitution says -- it will go with any third party's legal theory as long as it's "worth trying". The most effective ways to encourage colorable legal theories are either personal liability for disregard of legal lines, and quick smackdowns of baseless policies. I don't hold out much hope for the former.

[Brett Bellmore]

I think that it's been a long while since any Democratic administration actually cared what the Constitution says. Obama, for instance, had no problem with stating that he had no authority to do DACA, and then doing it anyway. But he made excuses.

What's novel here is that Biden is alright with everybody knowing he doesn't care. He's done with pretending.

Whatever residual shame about violating the Constitution that might have been restraining Democratic Presidents is gone. That's going to have profound implications going forward.

[Dr. Ed 2]

"Whatever residual shame about violating the Constitution that might have been restraining Democratic Presidents is gone. That’s going to have profound implications going forward."

Operation Wetback II???

[Commenter_XY]

Michael P...I vastly prefer the quick smackdown approach. The judiciary is not noted for their expeditiousness and dispatch (by design).

[OldCurmudgeon]

> it will go with any third party’s legal theory as long as it’s “worth trying”.

Worse, they also expressly admitted it's only "worth trying" for the delay value, not the underlying claim of authority.

[Armchair Lawyer]

I think Kav didn't want to limit future administrations. But Biden hasn't given him any options here.

Interestingly, Biden isn't taking responsibility. The CDC is. And is it clearly established law that the moratorium is illegal? Not quite. Thank God for qualified immunity. Otherwise the director of the CDC might be on the hook for damages. Nationwide...

[Brett Bellmore]

It's frequently the case that a novel usurpation of power won't have any existing precedent against it, because nobody previously had the nerve to try it. That this is considered a point in favor of novel usurpations of power has always struck me as a bit odd.

[WuzYoungOnceToo]

Interestingly, Biden isn’t taking responsibility.

"The buck starts here."

[Tempe Jeff]

"Plus a declaration by the Supreme Court that the policy is unlawful paves the way for a massive takings suit. What a risky gambit." Why is this risky? Throw a few Trillion Dollars at the Landlords. What the hell, and why not? It's just 1's and 0's at this point. Inflation, to the moon!!

[Darth Buckeye]

To paraphrase Claudia from THE DRAGON PRINCE, " 'Illegal' is just another form of 'legal.'"

[Archibald Tuttle]

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

That oath becomes pretty meaningless if you can use the logic of a non-official non-judicial person's idea of what the Constitution means.

Just imagine if Trump did that. Oh wait, Trump probably did do that. Of course everyone clapped, right?

Just do whatever you want as long as you can find one person someplace who can articulate why it is legal.

[Brett Bellmore]

Actually, Trump whined a lot and obeyed every last court order to come down the pike, and seldom, (I won't say never. Bump stocks!) made implausible claims of executive power.

Indeed, some of the complaints Democrats made about Trump during the Covid mess boil down to his NOT ordering states around, because he thought the states constitutionally were entitled to make certain decisions.

Worst dictator ever.

[bernard11]

Donald Trump - staunch defender of the Constitution. What a joke.

Indeed, some of the complaints Democrats made about Trump during the Covid mess boil down to his NOT ordering states around, because he thought the states constitutionally were entitled to make certain decisions.

Or maybe because he liked what the states were doing? I take it you've already written Pope Francis to see about an early canonization of Trump?

[Michael P]

Trump famously thought many states made bad policies about the pandemic. Did Trump order California or New York to change what they were doing? Did he threaten to withhold hospital ships or other aid if they declined to do what he argued they should?

[Commenter_XY]

He did not = Did Trump order California or New York to change what they were doing? Did he threaten to withhold hospital ships or other aid if they declined to do what he argued they should?

[WuzYoungOnceToo]

Donald Trump – staunch defender of the Constitution. What a joke.

The joke here is your habit of baseless hand-waving and ridicule. Perhaps you could provide some examples of Trump pissing on COTUS in anywhere near the manner that Biden is doing.

[Aktenberg78]

Test

[dwb68]

I don't understand why anyone is worried about a "narrowing construction." Go read the statute. https://www.law.cornell.edu/uscode/text/42/264

It's already narrow. Very narrow. It doesn't say anything anywhere about preventing evictions, lol.

But lets just for a hypothetical describe a rule that might be sufficiently tailored to pass muster under 42 U.S.C. § 264. (d) (1). and (2)

* before someone moves out they would need to be tested. If they tested positive for COVID they would have to be quarantined until they were negative (see (2), qualifying stage).
* It would only apply to foreigners entering the country, or people moving state to state (not intrastate)
* It would also apply to people moving out of homes etc.

The only people worried about a "narrowing construction" are people who thinks that the statute is a magical wand that lets the CDC do whatever it wants.

[Michael P]

The argument, at least mostly, is not that someone might spread COVID after being evicted. That would be a much narrower rule than what is implemented. The argument for a global moratorium on evictions is that someone is more likely to catch COVID because they lose their place of residence; they must be in public at least long enough to find a new residence, and might resort to public homeless shelters or some kind of group home that presents a higher risk of infection.

Of course, this rationale is not specific to COVID. It applies to any disease that can be transmitted through typical social interactions.

[dwb68]

Go read the statute again if you think it applies to people who are disease free.

[Michael P]

The moratorium power is asserted pursuant to 42 USC 264 (a), not (d).

[dwb68]

Go read the statute!

Even if you focus on (a), CDC authority is limited to people moving across state lines, or coming from another country.

But in any case, b,c,d limit (a) and are the only parts of the statute that address apprehension or detention of people.

[Michael P]

Clause (a) authorizes "such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession". It does not specifically say that the regulations must directly regulate interstate movements, and an unfortunately long line of Supreme Court precedent -- epitomized in Gonzales v. Raich -- says that federal regulations can affect purely intrastate activity as part of a coherent regulatory scheme for interstate commerce.

Also, (b), (c) and (d) provide limits on (a) only to the extent that the Surgeon General's regulations would enable "the apprehension, detention, or conditional release of individuals". An eviction moratorium does not do that.

I am not saying that the pro-moratorium argument is right, or even very good -- merely that you are arguing against a straw-man version of it, rather than a reasonable facsimile of what its defenders claim.

[dwb68]

Not a strawman, the actual text.

[Michael P]

The "actual text" does not mention the eviction moratorium, so obviously it does not purport to explain how or why the moratorium is justified.

[dwb68]

oh cmon, you know that cherry picking one sentence out of a statute is not how statutes work.

[Bob from Ohio]

"It’s already narrow."

Its very broad in its grant or powers we thing normal in fighting disease including quarantines.

Its the "and other measures" that needs narrowing.

[Rev. Arthur L. Kirkland]

"But this move was very risky from a long-term perspective. If the Court rules against the President, a majority will have to narrow the scope of 42 U.S.C. § 264. And that narrowing construction will constraint this administration and others in health crises unimaginable. Plus a declaration by the Supreme Court that the policy is unlawful paves the way for a massive takings suit. What a risky gambit."

Biden should reject a sensible (and imperfect) policy decision for fear of provoking a bad-for-America Supreme Court decision? A "risky gambit?"

Keep poking the rattlesnake, clingers. And get ready to start counting to thirteen. Not just a gambit -- the Clinger Variation.

[Jimmy the Dane]

What is the end game here? I think I KNOW what the left intends, but seriously, do these people have absolutely no idea? Soaking landlords for almost two years of rent is going to have horrible reverberations throughout the economy.

[Don Nico]

Jimmy,
They do not care

[Aktenberg78]

Of course not. The left is composed of malignant sociopaths. I just hope one day conservatives wake up and realize they're not dealing with political opponents who are generally nice, well meaning people, but evil monsters. Only at that point will conservatives realize that that extermination is the only way forward.

[Brett Bellmore]

I don't think they care. It's the Curley effect on a massive scale; The left does better electorally with the poor and the very wealthy, and not with the middle class, so they're trying to hollow out the middle class.

That the people immediately hurt are greatly outnumbered by the people who are immediately benefited is gravy, that might help them at the next election. But the long term goal is a society of poor and wealthy, with as few people left in the middle as possible.

[Aktenberg78]

Yes. Which also explains the wasteful "stimulus" from the past year and a half. It appeared to benefit the recipients at the beginning, but now inflation is out of control. The real losers are those with savings, which is mostly the middle class.

[Sarcastr0]

I also think this is a bad policy, but I don't think the left intends much more than short-sighted harm reduction, and some frankly unfortunate and myopic neglect for landlords.

[Aktenberg78]

No, what the left intends is a wealth transfer from whites to blacks. As always.

[WuzYoungOnceToo]

but I don’t think the left intends much more than short-sighted harm reduction, and some frankly unfortunate and myopic neglect for landlords

You neglected to mention the primary intent and motivation for the action: Buying votes.

[Sarcastr0]

OK, dude.

[tkamenick]

Lol. "My actual lawyer, the person who has ethical responsibilities to me, says no. But this random pundit with lots of opinions says it's fine!"

[OldCurmudgeon]

> Plus a declaration by the Supreme Court that the policy is unlawful paves the way for a massive takings suit.

Forget the takings claim (which just means we'd have to pay for the extensions...which is the just thing to do anyway). I'd like to see someone sue everyone personally (Section 1983?), citing SCOTUS and POTUS own statements as evidence this was a clearly established right.

Worse case, SCOTUS is forced to look at qualified immunity again.

[Bubba Jones]

Tribe convinced the Dems that he could provide them with the fig lead they needed to blatantly ignore the legal analysis of SCOTUS.

[ReaderY]

If every ruling for the tenant in an eviction lawsuit that gets overturned on appeal, every scheduling delay in holding a hearing, every statutory notice or waiting period before going to court that’s longer than it absolutely could be, doesn’t result in a takings claim on the landlord’s part, why should this? What’s the constitutional difference? In both cases the landlord’s right to retake possession is postponed by a government action that arguably (or definitely) lacks legal validity.

[Titus PUllo]

Just print money..it works....well it works for awhile.

There is not legal justification for any of this and everyone knows it. Govt can't decided on side of a voluntary contract doesn't have to meet the obligations of the contract. This is total bullshit and Tribe belongs back in the old USSR...

[David Nieporent]

I like how this debate proves how little attention people pay to actual facts. There's all this blather above about the constitution, despite the fact that it isn't a constitutional debate, but a statutory one.

Of course, one could take the position that the moratorium is unconstitutional, but the courts themselves haven't said that, so Biden isn't ignoring such a decision.